A decided public DOHA case, shown for research, not advice or a prediction.

ISCR Case No. 02-03797

Appeal Board

Decided Mar 4, 2005 · Administrative Judge Jean E. Smallin · Appeal

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The appeal involved a denial of a security clearance based on the applicant's financial difficulties. The applicant argued that his financial issues were mitigated and requested a conditional clearance. The Board affirmed the Administrative Judge's decision, finding no harmful error in the ruling.

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under the Directive to gr

Appearances

verse decision affirmed.

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DATE: March 4

Appeal Issues

ext-align: CENTER">FOR GOVERNMENT

Peregrine D. Russell-Hunter, Esq., Chief Department Counsel

FOR APPLICANT

Pro Se

The Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR), dated February 23, 2004, which

stated the reasons why DOHA proposed to deny or revoke access to classified information for Applicant. The SOR was based on Guideline F

(Financial Considerations). Administrative Judge Martin H. Mogul issued an unfavorable security clearance decision, dated November 15,

2004.

Applicant appealed the Administrative Judge's unfavorable decision. The Board has jurisdiction under Executive Order 10865 and

Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, as amended.

The following issues have been raised on appeal: (1) whether the Administrative Judge should have concluded Applicant's history of financial

difficulties was mitigated under Financial Considerations Mitigating Condition 3; and (2) whether Applicant can be granted a conditional or

probationary security clearance while he resolves his delinquent debts. For the reasons that follow, the Board affirms the Administrative

Judge's decision.

<CENTER>Scope of Review</CENTER>

On appeal, the Board does not review a case de novo. Rather, the Board addresses the material issues raised by the parties to determine

whether there is factual or legal error. There is no presumption of error below, and the appealing party must raise claims of error with

specificity and identify how the Administrative Judge committed factual or legal error. Directive, Additional Procedural Guidance, Item

E3.1.32. See also ISCR Case No. 00-0050 (July 23, 2001) at pp. 2-3 (discussing reasons why party must raise clai

Appeal Issues

of error with

specificity).

When the rulings or conclusions of an Administrative Judge are challenged, the Board must consider whether they are: (1) arbitrary or

capricious; or (2) contrary to law. Directive, Additional Procedural Guidance, Item E3.1.32.3. In deciding whether the Judge's rulings or

conclusions are arbitrary or capricious, the Board will review the Judge's decision to determine whether: it does not examine relevant

evidence; it fails to articulate a satisfactory explanation for its conclusions, including a rational connection between the facts found and the

choice made; it does not consider relevant factors; it reflects a clear error of judgment; it fails to consider an important aspect of the case; it

offers an explanation for the decision that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere

difference of opinion. See, e.g., ISCR Case No. 97-0435 (July 14, 1998) at p. 3 (citing Supreme Court decision). In deciding whether the

Judge's rulings or conclusions are contrary to law, the Board will consider whether they are contrary to provisions of Executive Order 10865,

the Directive, or other applicable federal law. Compliance with state or local law is not required because security clearance adjudications are

conducted by the Department of Defense pursuant to federal law. See U.S. Constitution, Article VI, clause 2 (Supremacy Clause). See, e.g.,

ISCR Case No. 00-0423 (June 8, 2001) at p. 3 (citing Supreme Court decisions).

When an Administrative Judge's factual findings are challenged, the Board must determine whether "[t]he Administrative Judge's findings of

fact are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary

evidence in the same record. In making this review, the Appeal Board shall give deference to the credibility determinations of the

Administrative Judge." Direct

Conclusion

e, Additional Procedural Guidance, Item E3.1.32.1. The Board must consider not only whether there is

record evidence supporting